inated the next of kin, based upon the negligent acts which caused the injury, subject to the condition expressed in section 6134, viz., that the circumstances of the injury were such as would, if death had not ensued, have entitled the party injured to maintain an action, although the injury was the sole and direct cause of the death, and although the same personal representative had prosecuted to final judgment and satisfaction a suit begun by the deceased in her lifetime to recover in the interest of her estate.

Finding no error in the judgment of the Circuit Court, the same will be affirmed.

SHAUCK, C. J., and PRICE, CREW, SUMMERS, and DAVIS, JJ., concur.

120. YUNDT v. HARTRUNFT

SUPREME COURT OF ILLINOIS. 1866

41 Ill. 9, at 12

[The facts are stated ante, in No. 84.]

WALKER, C. J. . . . It was again insisted, that, even if appellant was guilty, the suit should have been brought during the lifetime of appellee's wife, to enable him to recover; that, by delaying to bring the suit until after death, a recovery was thereby barred. If appellant seduced the wife of appellee, his right of recovery became complete at the time the injury was inflicted; and, the right to recover damages commensurate to the injury having then vested, we are aware of no principle of law which divested the right by the death of his wife. Had he or appellant died, then the suit could not have been sustained by or against their representatives; but we are aware of no case which holds, that the death of the wife defeats a recovery by the husband for damages he has sustained by debauching her, or that a father or a master is barred from recovering for debauching a daughter or servant because they had subsequently died but before a recovery was had. This suit is not for the injury to the wife, like a battery or slander of the wife.

121. HEY v. PRIME

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1908

197 Mass. 474, 84 N. E. 141

TORT against the executor of the will of James F. Ginn for loss of the services and society of the plaintiff's wife, Marion Hey, by reason of injuries sustained by her on February 13, 1905, from falling on an accumulation of ice in the cellar of a building numbered 129 on Boylston Street in Boston, which at the time of the injuries was owned and con

trolled by the defendant's testator. Writ in the Municipal Court of the City of Boston dated August 4, 1906.

It appeared by the writ and the declaration that James F. Ginn, the defendant's testator, was dead when the action was brought. The answer contained a general denial, and alleged payment and the payment of all expenses for medicine and medical attendance.

On appeal to the Superior Court the case came on to be tried before Pierce, J. After the jury were empanelled and after the plaintiff had read the pleadings and had made his opening, the defendant filed the following motion to dismiss the action: "Now comes the defendant and moves to dismiss this action because in the declaration and the opening statement of counsel for the plaintiff the cause of action, as set forth, if any, does not survive."

The judge ruled that the defendant was entitled to have the action dismissed on the ground that the cause of action did not survive. He allowed the motion and made an order that the action be dismissed. The plaintiff alleged exceptions.

E. W. Crawford, for the plaintiff.

W. W. Kennard (W. F. Prime and W. J. Drew with him), for the defendant.

BRALEY, J. By the common law, the right of the husband to recover damages for an injury to his wife, whereby either her services or consortium became lost, perished with the death of the wrongdoer. The injury inflicted, being the act of the tortfeasor who escaped by death, his executor or administrator, could not be held, because in their personal capacity having committed no wrong, the plea, which must have been not guilty, raised only the issue of the decedent's guilt. Wilbur v. Gilmore, 21 Pick. 250, 252. But this rule having been modified by statute, the question is, whether such an action survives under Rev. Laws, c. 171, § 1. This section, which follows previous revisions, provides, that

". . . actions of . . . tort for assault, battery, imprisonment, or other damage to the person. . . shall not abate by death."

Gen. St. 1860, c. 127, § 1; Pub. St. 1882, c. 165, § 1. Unless the case comes within the last clause, the plaintiff is not relieved. It has uniformly been held since the enactment of St. 1842, p. 539, c. 89, § 1, to which this clause runs back for its origin, that the nature of the damages sued for, rather than the form of remedy, is the test. By his construction, the language, "or other damages to the person," includes such damages only as result from direct bodily injury, but excludes consequential damages suffered by those who are injured from a wrongful interference with their rights, arising from the negligence of the decedent. Smith v. Sherman, 4 Cush. 408, 413; Cutter . Hamlen, 147 Mass. 471, 18 N. E. 397, 1 L. R. A. 429; Wilkins v. Wainwright, 173 Mass. 212, 53 N. E. 397, and cases cited; Dixon v.

Amerman, 181 Mass. 430, 63 N. E. 1057. If the common-law doctrine of unity of husband and wife, by which she was deemed a part of his person, has been almost wholly abrogated by legislation, yet the right to her exclusive conjugal fellowship still remains, and he may recover damages for its impairment by the wrongful acts of strangers. Nolin v. Pearson, 191 Mass. 283, 285, 286, 77 N. E. 890, 4 L. R. A. (n. s.) 643, 114 Am. St. Rep. 605. But while this right has been preserved, if during coverture she suffers personal injury, whether it results from the direct act of the decedent by the use of force, or is caused by his negligence, she alone by reason of our statutes conferring upon her absolute control over her person, and the right to sue as if sole, can maintain an action for damages, which upon recovery become her separate property. Nolin v. Pearson, ubi supra; Duffee v. Boston Elev. R. R., 191 Mass. 563, 564, 77 N. E. 1036. But where the husband also brings suit, because the disability arising from the tort has deprived him of either her services, or matrimonial companionship, his right to recover rests upon the ground, that the wrong suffered by him while personal in effect, is regarded as purely consequential in character. Barnes et ux. v. Hurd, 11 Mass. 59; Kelley v. New York, New Haven, & Hartford R. R., 168 Mass. 308, 311, 46 N. E. 1063, 38 L. R. A. 631, 60 Am. St. Rep. 397.

It is plain that, under the statute, such an injury cannot be classed as damages to the person, and the motion to dismiss was properly granted. Exceptions overruled.

SUB-TOPIC D. EFFECT OF THE STATUTES AS SURVIVING A DECEASED TORTFEASOR'S LIABILITY

122. DEVINE v. HEALY

UPREME COURT OF ILLINOIS. 1909

241 Ill. 34, 89 N. E. 251

ERROR to Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Axel Chytraus, Judge.

Action by John F. Devine, administrator, against Mary E. Healy, executrix. Judgment for defendant was affirmed by the Appellate

1 [PROBLEMS:

By the judicial decisions of Pennsylvania the non-resident alien relatives of a person killed in that State have no claim under the statute. A Federal treaty with Italy guarantees to its subjects in the United States the same rights as natives in respect to "protection and security for their persons and property." Is the claim under death statutes a claim of the deceased, falling within the treaty, or a claim of the non-resident relatives, falling without it? (1909, Maiorano v. Baltimore & O. R. Co., 213 U. S. 268, 29 Sup. 424.)

Under a death-statute providing that "the jury may give such damages as they shall deem fair and just not exceeding $10,000,” may the jury be instructed that by reason of the deceased's tender age, four years, and his want of earning

Court (141 Ill. App. 290), and plaintiff brings error. Reversed and remanded, with directions.

This was an action brought on April 12, 1907, by James Reddick, administrator of the estate of Frank Riggs, deceased, in the Superior Court of Cook County, against defendant in error, Mary E. Healy, executrix of the will of John M. Healy, deceased, to recover damages capacity, only nominal damages could be recovered by the administrator? (1909, Chesapeake & O. R. Co. v. Hawkins, 4th C. C. A., 174 Fed. 597.)

Ryley was one of the crew on a barge towed down the Delaware River from Philadelphia; by the negligence of the tug's master, the tow-hawser parted and the end struck Ryley in the abdomen. He was taken ashore to a hospital in Philadelphia, and there died the next morning. His widow sues the tug in the Federal Court under its admiralty jurisdiction over torts done on navigable waters. By admiralty law, a tort falls within its jurisdiction only when the wrongful result occurs on the water, and not merely the originating act. Has the admiralty Court jurisdiction here? (1909, Ryley v. Philadelphia & Reading Railway Co., D. Ct. So. Dist. N. Y., 173 Fed. 839.)

The father of a family was killed in an affray caused by the defendant's unlawful sale of liquor to the father and C.; two months after his death the plaintiff child was born; may he recover? (1905, State v. Soule, 36 Ind. App. 73, 74 N. E. 1111.)

ESSAYS:

Charles R. Darling, "Statutory Liability for causing Death." (A. L. Reg. N. S. XXVIII, 385, 513, 577.)

C. A. Lightner and others, "The Abuse of Personal Injury Litigation." (Green Bag, XVIII, 193.)

Williamson, R. M., "Actio Personalis moritur cum Persona' in the Law of Scotland." (L. Q. R., X, 182.)

Gustavus Hay, Jr., "Death as a Civil Cause of Action in Massachusetts." (Harvard Law Rev., 1893-94, VII, 170.)

A. J. Hirschl and S. S. Page, "Personal Injury Actions: A. The Plaintiff's Standpoint. B. The Defendant's Standpoint." (I. L. R., I, 16, 27.)

NOTES:

"Death of a minor: right of action." (C. L. R., I, 413.)

"Action for personal injuries; Survival of." (C. L. R., VIII, 328.)

"Action for death by wrongful act." (H. L. R., II, 189; XI, 271; XII, 140, 433; XV, 313.)

"Construction of statutes as affected by statutes for the survival of actions." (H. L. R., IV, 145; IX, 224; XV, 854.)

"Release by deceased as a bar to the statutory action." (H. L. R., XIII, 309; XIV, 290.)

"Damages in statutory action: Loss of parental care." (H. L. R., XIX,

381.)

"Action for death: Liability of carrier to administrator after deceased has waived his rights." (H. L. R., XX, 66.)

"Measure of damages in action for death of child." (M. L. R., II, 318.) "Infants, unborn: right when born to sue for injury sustained en ventre sa mère." (C. L. R., VIII, 670.)

"Unborn children: actions under statutes for death by injury to mother." (H. L. R., VIII, 365; XV, 313.)

59.)

"Action by posthumous child after recovery by mother." (H. L. R., XVII,

"Right of posthumous child to sue for death of father." (M. L. R., II, 236.)]

for the death of the said Riggs, alleged to have been caused through the negligence of said John M. Healy. Later John F. Devine succeeded Reddick as administrator and was substituted in this suit. The declaration as finally amended alleges, in substance: That on April 20, 1906, John M. Healy was a general contractor engaged in laying a water main in the city of Libertyville, in Lake County, Ill.; that on that date Frank Riggs was in the employ of Healy as a caulker, and while working at the bottom of a ditch which had been dug by the employees of Healy, and while he was in the exercise of due care, his death was occasioned by the negligence of Healy. The alleged acts of negligence were set out with sufficient particularity. It was further averred: That Riggs left surviving him his father, his mother, and certain brothers and sisters, all of whom were dependent upon him, in whole or in part, for their support, and that they had been deprived of their support by reason of his death; that said John M. Healy died on July 16, 1906; that prior to the commencement of this suit defendant in error was duly appointed and qualified as executrix of his last will; and that she was acting in that capacity at the time the suit was begun. To the declaration, as amended, defendant in error interposed a general demurrer, which was sustained. Thereupon plaintiff in error elected to stand by his pleading, and judgment was entered against him for costs, and the suit dismissed. That judgment has been affirmed by the Branch Appellate Court, and the case has been brought to this Court by a writ of error. It is contended by plaintiff in error that the Superior Court erred in sustaining the demurrer and in entering judgment against him.

Runnells, Burry and Johnstone (G. M. Petters, of counsel), for plaintiff in error.

Gorham and Wales, for defendant in error.

SCOTT, J. (after stating the facts as above). The only question presented for determination is whether this action, brought exclusively for the benefit of the next of kin pursuant to section 2, c. 70, Hurd's Rev. St. 1908, can be maintained against the executor of the alleged wrongdoer. At common law an action for a wrong of the character here charged abated upon the death of the person aggrieved or upon the death of the tortfeasor. A change was effected in England by the passage of Lord Campbell's Act. St. 9 & 10 Victoria, c. 93. Thereafter, in 1853, our statute requiring compensation for causing death by wrongful act, neglect, or default was enacted. The first section of our statute is identical with the first section of Lord Campbell's Act, and is in these words:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to